PRITHWI CHAND LAL CHOUDHURY Vs. SMORAMBA SUNDARI DASI

JUDGEMENT

(1.) This petition by the defendant in Title Suit No. 95 of 1913 in the Court of the Second Munsif, Kishangunj, is directed against an appellate order of the Additional Subordinate Judge, Purnea, setting aside the decree of the Munsif and remanding the case for rehearing after taking further evidence.

(2.) The suit was one for a declaration of title and recovery of possession of 4 kathas 1 dhur of land, which the plaintiff claims as purchased by him from one Harbans Misser. According to the plaintiff, Harbans originally had 11 kathas of land and took settlement from the defendant-petitioner of 4 kathas 1 dhur, the land in dispute, and under a kobala transferred to the plaintiff the entire area of 15 kathas 1 dhur. The plain-tiff is in possession of 11 kathas and has brought the suit to recover 4 kathas 1 dhur of which the defendant is in wrongful possession. The defence admit having made a settlement of 4 kathas 1 dhur in favour of Harbans Misser in December 1915. They deny, however, the identity of the land settled in December 1915 with the land in suit. According to them, Harbans originally had only 6 kathas, which, along with the 4 kathas 1 dhur subsequently settled with him, he transferred by the sale deed to the plaintiff. Ac-cording to the defence, therefore, the 11 kathas of which the plaintiff admits possession, include 4 kathas 1 dhur settled with Harbans in December 1915.

(3.) There has been no cadastral survey in the village, in which the land lies. No commission was taken out by either party for a survey and identification of the land in suit by actual measurement on the spot, The Munsif, on a consideration of the boundaries stated in the plaint and in the kabuliyat, by which the settlement was made in 1915, and of the configuration of the land, and by reference to Ex. A, a document which is said to show that the plaintiff's husband filed an application to take settlement of the suit land, and to certain other evidence, came to the definite conclusion that the land in suit is not the land to which the kabuliat of December 1915 relates. Hence, he dismissed the suit.